Rights group criticises Afghan 'moral crimes'

Report calls for release of 400 women and girls prosecuted and jailed for 'running away' in Afghanistan.

The report questions the constitutionality of the crimes which the women and girls are convicted for [GALLO/GETTY]

A new report from rights group Human Rights Watch says hundreds of women and girls in Afghanistan have been imprisoned for 'moral crimes', including running away from home and sex outside marriage.

The report, I Had to Run Away, released on Wednesday, calls for the estimated 400 women and girls to be freed, saying the Western-backed government of Afghan President Hamid Karzai has failed to fulfill obligations in accordance with international human rights law.

"It is shocking that 10 years after the overthrow of the Taliban, women and girls are still imprisoned for running away from domestic violence or forced marriage," said Kenneth Roth, executive director of Human Rights Watch.

The group estimates a total of 400 women in prison and girls in juvenile detention facilities are accused or convicted of offences including "running away".

"Afghanistan is the only Islamic government in the world that specifically criminalised running away", despite no mention of this practice in Afghan law, Heather Barr, Afghanistan researcher at the New York-based organisation, told Al Jazeera.

A women's prison administrator told the rights organisation "cases of 'running away' should be solved in the community, not in prison".

She says the government should explore alternative methods like shelters and employment in place of imprisonment.

When judges do convict women and girls of running away, it is often "solely on the basis of 'confessions' given in the absence of lawyers and 'signed' without having been read to women who cannot read or write".

Upon conviction, women face long sentences, in some instances over 10 years, says the report.

Constitutional background

Because provisions against running away are nowhere to be found in the Afghan penal code, Barr says these convictions, are often made under the auspices of article 130 of the Afghan constitution.

The article states: "When there is no provision in the Constitution or other laws regarding ruling on an issue, the courts’ decisions shall be within the limits of this Constitution in accord with the Hanafi jurisprudence and in a way to serve justice in the best possible manner."

Judges and prosecutors say the article allows for use of interpretations of Islamic law.

However, Barr says the prosecutors and judges are ignoring limits set within the article.

"Those limits are that it has to be compatible with the other provisions of the constitution and lead to a just outcome," says Barr.

The invocation of article 130 in cases of "moral crimes" are in violation of article 27 of the constitution, says Barr.

That article states: "No person can be punished but in accordance with the decision of an authorised court and in conformity with the law adopted before the date of offense".

"Article 130 is not a blank cheque for judges to take any actions they like in the name of Sharia," says Barr of cases like that of 17-year-old Khalida, imprisoned for running away with a boy her parents had forbidden her from marrying.

'Dysfunctional system'

Khalida's case also highlights the danger that corruption in the prisons themselves poses to the lives of these women and girls.

"My parents come every week on visiting day. Every time they tell me that very soon they will pay the prison staff to give me to them, and then they will kill me."

The report says that women and girls like Khalida rarely found support from authorities in what HRW termed a "dysfunctional criminal justice system".

Like Khalida, many of the 58 interviewees in the report, also feared death at the hands of their family upon release for having tainted the family's "honour".

Nemat, who has worked to mobilise women to be more active in politics in eastern Afghanistan, says the legal department of the Ministry of Women's Affairs has been established to protect women who may feel endangered due to these "moral crimes". The government has also established safe houses for this purpose.

But, "not all women across the country have access to these safe houses and sadly, by the time they reach them, the women are abused even further", said Nemat.

Criticisms

Barr says Afghan women's rights activists were a crucial source of information for the report, it was "their encouragement [that led HRW] to focus on this issue in the first place", she said.

But some women's rights activists have expressed concern at the report's handling of the issue.

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Wazhma Frogh, a gender and development specialist, told Al Jazeera the report may in fact make the work of women's rights activists in the central-Asian nation more difficult.

Frogh says the report does not make enough of a distinction between those who run away from violence and those accused of adultery.

"The report mixes up all kinds of runaways and its misguiding. Now for the public, every case of a runaway will be [seen as] adultery", says Frogh. She points to cases of runaways in shelters who are neither prosecuted nor imprisoned, an issue she says the report does not properly address.

Barr says HRW wanted to interview women in shelters precisely for the purpose of "trying to understand why some runaways reach safety in shelters while others end up imprisoned" but were refused access by the government.

Frogh takes further issue with what she says is a lack of "any content analysis of the sharia doctrines which the judges base their decisions on".

However, Barr says that because article 130 sets strict limits on how judges apply sharia, which prevent "the creation of new crimes", it was not necessary to look at sharia for the report.

Nemat fears the report may be seen as a general statement of impunity for the 400 women HRW says are either in prison or juvenile detention centres.

"I think its equally important that any woman who commits a crime should also face justice," says Nemat.

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